Gardaí identify legal flaw with roadside impairment test

Drivers who fail the Garda's roadside impairment test cannot be required to provide a blood or urine sample due to an error in the legislation, The Irish Times has learned.

Impairment tests were introduced under the Road Traffic Act (2016) which also gave gardaí powers to test motorists for drugs at the roadside. Gardaí began roadside drug-testing in April 2017.

Under an impairment test, a driver is examined on their ability to carry out a number of co-ordination tasks, including walking in a straight line. Pupil dilation is also checked.

However, a drafting error in the Act means gardaí do not have the power to take a blood or urine sample from a driver arrested for failing or refusing to take an impairment test.

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This is because the powers to do so referred to in the Act are incorrect.

The issue emerged while gardaí were being trained on how to carry out road-side drug-driving tests using impairment tests and new handheld drug-driving test kits.

The Garda legal department recently issued a letter advising Road Policing Unit gardaí of the issue and noted primary legislation would be required to fix the error.

A senior Garda told The Irish Times Garda management had written to the Department of Transport to inform them.

Identified in training

“The issue is around the impairment test and a reference in the Act to the wrong subsection and it was identified during training.”

He said while the error meant a sample could not be taken from a driver who failed or refused to take an impairment test, the issue was having a negligible impact operationally.

We have multiple testing options at the roadside and multiple arrest options. So we don't have to use the impairment test

“We can still arrest them for having failed or refused an impairment test, and the sanctions for this are severe, up to and including mandatory disqualification. We just can’t take a sample in the station.

“We have multiple testing options at the roadside and multiple arrest options. So we don’t have to use the impairment test; we can test using the breathalyser or the drug testing kit.”

He said very few motorists either failed or refused a roadside impairment test and added he was not aware of the issue coming up during the prosecution of a driver accused of being intoxicated.

“But a lawyer could probably argue the issue in court and that is why we need to get it changed.

Susan Gray, chair of road safety awareness group Parc, said it beggared belief that yet another error has been identified in the drafting of life-saving road traffic legislation and she called on the Minister for Transport to address this issue immediately.

She also said the error highlighted the urgent need for work to begin on a consolidated road traffic Bill. She said this was promised three years ago but there had been scant progress since.

This is not the first time a typographical error has emerged in legislation targeting intoxicated drivers. In 2006, emergency legislation was required to correct the error in the Road Traffic Act 2006.

The error meant a driver who refused to give a breath sample at a mandatory checkpoint and from whom a breath, blood or urine sample was later taken at a Garda station, was unlikely to be successfully prosecuted for drink-driving.